5.  The applicant was born in 1941 and lives in Vienna.
6.  The applicant had been an employee of the embassy of the United States of America in Vienna since March 1978. From January 1981 onwards she had a contract of indefinite duration and worked as a photographer at the embassy. Following an accident in 1983, the competent authority issued a decision stating that she qualified for protection under the Disabled Persons (Employment) Act (Invaliden­einstellungs­gesetz). The embassy dismissed her in September 1987, following a further accident in March of that year which was classified as work-related.
7.  While the applicant was employed by the US embassy in Vienna, she registered herself as an employee under the social security system pursuant to section 35(4)(a) of the General Social Security Act (Allgemeines Sozialversicherungsgesetz). She paid both the employer’s and employee’s contributions to the social security system to the Vienna Health Insurance Board (Gebietskrankenkasse, “the Health Insurance Board”) until August 1988. In accordance with her contract of employment, the United States reimbursed the applicant the employer’s contribution, which amounted to 53% of the total social security contributions until November 1983. Subsequently, on the basis of administrative notices of the US embassy in Vienna of 21 April 1982 and 13 January 1984, the United States undertook to refund its employees the employer’s contributions in the amount of 55% of the total social security contributions, upon timely submission of the relevant statements of the Health Insurance Board. According to the applicant, the United States did so in her case until March 1987; however, according to the Government, the relevant date was August 1988.
8.  The applicant’s dismissal was declared void by the Vienna Labour and Social Court (Arbeits- und Sozialgericht) on the grounds that it required the prior agreement of the competent authority under the Disabled Persons (Employment) Act. The court dismissed the argument submitted by the United States that it lacked jurisdiction on account of the country’s immunity. It found that, while foreign States enjoyed immunity with regard to acta iure imperii, they came within the jurisdiction of the domestic courts with regard to acta iure gestionis. The conclusion and performance of an employment contract fell within the latter category. The Supreme Court (Oberster Gerichthof) upheld that judgment on 21 November 1990, noting that the United States had not maintained the objection of State immunity in the further course of the proceedings.
9.  As a result of the above proceedings, the applicant continued to have a valid employment contract with the Unites States’ embassy in Vienna. However, the latter refused to make use of her services.
10.  The applicant brought proceedings against the United States requesting payment of her salary. In a first set of proceedings, concerning salary payments from 1 September 1988 to 30 June 1995, the United States unsuccessfully raised the objection of jurisdictional immunity. In compliance with a judgment of the Vienna Labour and Social Court of 14 July 1995, the United States paid the applicant a total amount of 3.7 million Austrian schillings (ATS – approximately 269,000 euros (EUR)), composed of some ATS 3 million (approximately EUR 224,000) for salary arrears plus staggered interest. As before, the salary payment corresponded to the applicant’s gross salary, including the employee’s contributions to the social security system, which she had to pay to the Health Insurance Board. On the occasion of the payment, the lawyer who had represented the United States in the proceedings informed the applicant by a letter of 16 October 1996 that the payment did not imply any acceptance of the Austrian courts’ judgments, that the United States considered her employment contract to be terminated and would, if she raised any further claims, “make use of its diplomatic rights and immunities”.
11.  Further proceedings relating to the payment of salary from July 1995 to August 1996 led to a final default judgment by the Vienna Labour and Social Court. However, the United States did not pay the amount awarded to the applicant.
12.  The applicant brought proceedings relating to salary payments from September 1996 onwards but they were also unsuccessful, as the US Department of State had refused to serve the relevant summons on the Department of Justice, which was competent to represent the United States in civil litigation. The Austrian courts held that the refusal to serve summons fell within the category of acta iure imperii. They concluded that the defendant had not been duly summoned and that they could not proceed with the applicant’s case. The Supreme Court confirmed that position in judgments delivered on 5 September 2001 and 7 May 2003. Those proceedings were the subject of application no. 156/04, Wallishauser v. Austria. In its judgment of 17 July 2012, the Court held that by accepting the United States’ refusal to serve the summonses in the applicant’s case as a sovereign act and by refusing, consequently, to proceed with the applicant’s case, the Austrian courts had impaired the very essence of the applicant’s right of access to court and had thus violated Article 6 § 1 of the Convention.
13.  On 17 March 1999 the Federal Ministry for Labour, Health and Social Security (Bundesministerium für Arbeit, Gesundheit und Soziales) issued a declaratory decision, holding that the applicant continued to be an employee within the meaning of section 4 of the General Social Security Act on account of her valid employment contract with the US embassy in Vienna (see paragraphs 8 and 9 above). Consequently, she was affiliated to the social security system.
14.  Subsequently, the Health Insurance Board ordered the applicant to pay the employer’s and employee’s social security contributions for the period from 1 September 1988 to 30 June 1995, that is to say the period for which she had received salary payments (see paragraph 10 above). The applicant raised objections. As the Health Insurance Board failed to decide on them within the statutory time-limit, the applicant filed an application for transfer of jurisdiction (Devolutionsantrag).
15.  In a decision of 7 June 2000 the Vienna Regional Governor ordered the applicant to pay the employer’s and employee’s social security contributions amounting to ATS 1,088,676.76 (EUR 79,117.22) in total, which were due for her employment at the US embassy in Vienna for the above-mentioned period. The decision relied on section 53(3)(a) of the General Social Security Act, noting that the United States was an employer enjoying extraterritorial status and had not paid any social security contributions for the applicant during the period at issue. Finally, the Regional Governor found that in the circumstances of the case, no default interest was to be charged.
16.  The applicant paid the employee’s contributions of ATS 502,631.67 (EUR 36,527.70). However, she appealed against the decision. In her appeal of 6 July 2000 she argued, in particular, that the US embassy had undertaken to pay the employer’s social security contributions and had laid down its obligation to do so in an administrative notice of 21 April 1982. In the applicant’s view, section 53(3)(a) of the General Social Security Act did not apply, as her employer had agreed to pay the employer’s contribution. Instead the general rules should have been applied, namely section 51(3) of the said Act, which provided that social security contributions were to be borne in part by the employer and in part by the employee, and section 58(2), which provided that the employer was the contribution debtor for the entire amount of social security contributions vis-à-vis the Health Insurance Board. In the alternative, the applicant submitted that section 53(3)(a) of the General Social Security Act violated the principle of equality before the law guaranteed by Article 7 of the Federal Constitution. Under public international law as it stood, the fulfilment of employment contracts fell within the category of acta iure gestionis and was thus not exempt from domestic jurisdiction. There was thus no objective reason for treating employees of an employer having extraterritorial status differently from other employees.
17.  On 18 June 2001 the Federal Ministry for Social Security and Generations (Bundesministerium für soziale Sicherheit und Generationen) allowed the applicant’s appeal, holding that she did not have to pay the employer’s social security contributions for the period from 1 September 1988 to 30 June 1995. It noted, in particular, that the US embassy in Vienna, on the basis of an administrative notice of 21 April 1982, had concluded an agreement with its employees to reimburse the employer’s social security contributions amounting to 55% of the total contributions. It had constantly complied with that agreement, but had refused to reimburse the applicant following her accident in 1987. The Ministry found that the US embassy was obliged to pay the employer’s contributions for the applicant’s employment.
18.  On 3 October 2001 the Constitutional Court refused to deal with the applicant’s complaint for lack of prospects of success and transferred the complaint to the Administrative Court (Verwaltungsgerichtshof).
19.  In her complaint to the Administrative Court, the applicant maintained that section 53(3)(a) of the General Social Security Act should not have been applied in her case. Instead the general rule of section 58(2) should have been applied, which provided that the employer was the contribution debtor for the entire amount of social security contributions. Consequently, she should not have been treated as the contribution debtor for the employee’s contributions either.
20.  The Health Insurance Board also lodged a complaint with the Administrative Court, asserting that under section 53(3)(a) the applicant was obliged to pay both the employer’s and employee’s contributions.
21.  On 15 March 2005 the Administrative Court, having joined both cases, upheld the Health Insurance Board’s complaint and quashed the Federal Ministry’s decision. It held that section 53(3)(a) of the General Social Security Act applied in the present case, as the applicant’s employer enjoyed extraterritorial status and did not pay social security contributions. Referring to its case-law, the Administrative Court noted that section 53(3)(a), which required the employee to pay the entire amount of social security contributions, provided, firstly, for an exception from the rule laid down in section 51(3) of the General Social Security Act which provided that the contribution burden was to be shared between the employer and the employee. As a consequence, it also made the employee liable to pay the entire amount of contributions. The application of section 53(3)(a) was not excluded on account of the fact that the US embassy had given an undertaking to its employees to reimburse the employers’ contributions provided that certain requirements were met.
22.  In a decision of 10 June 2005 the Federal Ministry for Social Security, Generations and Consumer Protection (Bundesministerium für soziale Sicherheit, Generationen und Konsumentenschutz) ordered the applicant to pay both the employee’s and employer’s social security contributions, in a total amount of EUR 79,177.22 for the period from 1 September 1988 to 30 June 1995. It relied on section 53(3)(a) of the General Social Security Act, noting that the provision had been introduced in 1962. The legislature’s intention had been to regulate the rare cases in which extraterritorial employers refused to pay the relevant employer’s social security contributions. As such employers could not be forced to comply with Austrian law, the legislature had considered that there was no other solution than to require the entire amount of social security contributions to be paid by the employee.
23.  Regarding the applicant’s submissions that section 53(3)(a) of the General Social Security Act was unconstitutional for being discriminatory, the Ministry noted that it was not called upon to examine the constitutionality of the provision at issue. It had to apply the law in force, with the exception of cases in which provisions of EU law had precedence over Austrian law.
24.  In her complaint to the Constitutional Court (Verfassungsgerichtshof), the applicant claimed that the Ministry’s decision had violated her right to property and her right not to be discriminated against as well as her right to social security and to a fair trial. She maintained her argument that under current public international law there was no objective reason for the distinction made by section 53(3)(a) of the General Social Security Act between employees of an extraterritorial employer and any other employees. Moreover, the case-law of the Court of Justice of the European Communities (ECJ) provided that the rights guaranteed by the European Convention on Human Rights formed part of the basic principles of community law. The ECJ had also held in a number of cases that a difference in treatment had to be objectively justified. However, the Ministry had failed to obtain a preliminary ruling on whether section 53(3)(a) violated EU law. In conclusion, the applicant requested the Constitutional Court to quash the Ministry’s decision or, if need be, to examine the constitutionality of the said provision or to request the ECJ to give a preliminary ruling.
25.  On 27 September 2005 the Constitutional Court refused to deal with the applicant’s complaint for lack of prospects of success. Referring, inter alia, to Article 29 of the 1972 European Convention on State Immunity (which exempts proceedings concerning social security from the application of that Convention), the Constitutional Court noted that due to the practical consequences of the employer’s extraterritorial status there was no appearance of a violation of constitutional law by section 53(3)(a) of the General Social Security Act. The decision was served on the applicant’s counsel on 7 October 2005.
26.  While the above proceedings were pending, the applicant brought proceedings against the United States claiming reimbursement of the employer’s part of the social security contributions which she had been ordered to pay to the Health Insurance Board. In those proceedings, the US Department of State had refused to serve the summons on the Department of Justice, which was competent to represent the United States in civil litigation. The Austrian courts held that the refusal to serve the summons fell within the category of acta jure imperii. They dismissed the applicant’s request for a judgment in default. Their position was confirmed by the Supreme Court’s judgment of 11 June 2001.
27.  In a decision of 3 June 2002 the proceedings were stayed, pending the Administrative Court’s decision in the proceedings between the applicant and the Health Insurance Board. Following the Administrative Court’s judgment of 15 March 2005 (see paragraph 21 above), they were resumed by the Vienna Labour and Social Court on 27 December 2005, which noted, however, that service of the summons was not possible.
28.  In April 2002 the applicant reached pensionable age. She gave the US embassy in Vienna notice of termination of her employment and applied to the competent Pension Insurance Office for an old-age pension from 1 May 2002.